Preview
CAUSE NO 23
DENETTA R. WILLIAMS, IN THE DISTRICT COURT OF
FORT BEND COUNTY, TEXAS
SONYA JONES, Defendant/C ontestee;
FORT BEND I.S.D. TRUSTEES,
Sued In Their Official Capacity,
JUDY DAE, DAVID HAMILTON,
SHIRLEY ROSE GILLIAM,
KRISTEN MALONE, RICK GARCIA
and ANGIE HANAN, COUNTY OF
FORT BEND, TEXAS, Sued In His
Official Capacity, JOHN OLDHAM,
Election Administrator,
Defendants. 400TH JUDICIAL DISTRICT
DEFENDANT RESPONSE TO
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Sonya Jones, Judy Dae, David Hamilton, Shirley Rose Gilliam, Kristen Malone,
Rick Garcia, and Angie Hanan (the FBISD Parties) file their Response to Plaintiffs
for Summary Judgment as follows:
On March 18, 2020, Governor Greg Abbott authorized local political subdivisions to
postpone their May 2, 2020, elections until November 3, 2020, due to the COVID 19
pandemic. The Fort Bend Independent School District (the District) exercised its authority
under that proclamation. Former Trustee Denetta Williams, the plaintiff in this action, took
office following an election conducted in November 2020 under the authority granted to the
District by Governor Greg Abbott’s March 18, 2020, proclamation.
Well over two years later, on April 20, 2023 — on the eve of the subsequent election
where early voting was already underway — Williams filed suit against each member of the
District’s Board of Trustees. Williams sought to stop the election by seeking a judicial
declaration rendering the 2020 election invalid. The District and the named Trustees filed a
Plea to the Jurisdiction in response, which was granted. Williams’ lawsuit was dismissed with
prejudice and she did not appeal. Williams went on to lose the May 2023 election, placing
fifth among the candidates. Sonya Jones, one of the defendants in this action, prevailed and
was swom in as a District trustee on May 15, 2023. Now, having filed a nearly identical
petition against the same parties, plus Jones, to invalidate the results, Williams moves for
summary judgment on her claims. Williams’ motion lacks merit and should be denied.
Argument
A Williams’ claims suffer from fatal jurisdictional defects and, even if the Court had
jurisdiction over Williams’ claims, the FBISD Parties are entitled to summary
judgment.
Williams’ motion seeks summary judgment on her own claims. But, her claims suffer
from fatal jurisdiction defects and fail on the merits. Accordingly, the FBISD Parties filed a
comprehensive plea to the jurisdiction and moved for summary judgment on each of the
claims set forth in Williams’ third amended petition. See FBISD Parties’ Plea to the
Jurisdiction and Motion for Summary Judgment filed on September 22, 2023 (on file) and
FBISD Parties’ Supplement to their Plea to the Jurisiction and Motion for Summary Judgment
filed on October 17, 2023 (on file) (collectively, The FBISD Parties’ Plea and Motion).
Because the FBISD Parties’ Plea and Motion conclusively establishes that Williams’ claims
suffer from incurable jurisdictional defects and should be dismissed on summary judgment
as a matter of law, the FBISD Parties’ arguments necessarily defeat Williams’ summary
judgment arguments as a matter of law. See id. (establishing fatal jurisdictional defects and
conclusively demonstrating why Williams’ claims should be dismissed on summary
judgment).
The FBISD Parties’ Plea and Motions and Willaims’ motion are set for hearing on the
same date and time and, as such, in the interests of judicial economy, the FBISD Parties will
not repeat their arguments here but, instead, will incorporate them by reference pursuant to
Texas Rule of Civil Procedure 58. See Tex. R. Civ. P. 58 (permitting incorporation by
reference); see also the FBISD Parties’ Plea and Motion attached as Exhibit A; the FBISD
Parties’ Supplemental Plea and Motion attached as Exhibit B. Additionally, the FBISD Parties
incorporate John Oldham’s summary judgment response by reference pursuant to Rule 58.
See Tex. R. Civ. P. 58.
B Williams has failed to carry her summary judgment burden.
Even if the Court found it had jurisdiction, and was not persuaded by the District’s
summary judgment arguments, Williams has failed to carry her summary judgment burden.
As the plaintiff, Williams is required to show that there is no genuine question of material fact
as to each element of her claims — stated differently, Williams must establish her claims as a
matter of law. See Tex. R. Civ. P. 166a(a); see also Al's Formal Wear of Houston, Inc. v.
Sun, 869 S.W.2d 442, 444 (Tex. App.—Houston [1st Dist.] 1993, writ denied). She fails to
do this and just a cursory review of Williams’ motion demonstrates as such. Williams’ attempt
to show otherwise is entirely conclusory. See Williams’ Motion (on file). Similarly, Williams
fails to prove the misguided proposition that her motion rests on, i.e., her claim that the
District’s May 2023 election was not joint. See id. And that’s her burden. Instead, Williams
offers the Court only her blank assertions that the election was not joint. See id. Williams’
failure to carry her evidentiary burden on summary judgment, standing alone, requires denial
of her motion.
Cc Williams’ motion must be denied to the extent that it seeks summary judgment on
claims against parties that she added to this litigation after moving for summary
judgment.
Even if Williams’ summary judgment arguments were meritorious (and they are
not), she is still not entitled to summary judgment on all of her claims. After filing her
motion for summary judgment, Williams amended her petition to add new parties — who
have not yet been served — and assert new claims. See Williams’ Fourth Amended Petition
filed on October 19, 2023 (on file). The Court cannot grant summary judgment on claims
or against partiest that were not included in Williams’ third amended petition. See Johnson
v. Rollen, 818 S.W.2d 180, 183 (Tex. App.—Houston [1st Dist.] 1991, no writ). As such,
even if the Court were to entertain Williams’ motion, it should deny the motion as to the
new parties and new claims.
Conclusion
Because Williams’ claims fail as a matter of law, she is not entitled to summary
judgment. Moreover, Williams failed to carry her summary judgment burden. Accordingly,
this Court should deny Williams’ motion for summary judgment.
Respectfully submitted,
ROGERS, MORRIS & GROVER, L.L.P
a 2 ens BAN _
ATHAN GRIFFIN BRUSH
ite Bar No. 24045576
jbrush@rmgllp.com
DILLON BREAZEALE
State Bar No. 24131284
dbreazeale@ mmgllp.com
5718 Westheimer, Suite 1200
Houston, Texas 77057
Telephone: 713/960-6000
Facsimile: 713/960-6025
ATTORNEYS FOR THE FBISD PARTIES
CERTIFICATE OF SERVICE
I hereby certify that on October 31, 2023, I electronically filed the foregoing with
the Clerk of Court and a true and correct copy was served via the Myfilerunner system
and/or electronic mail as follows:
Denetta R. Williams, Pro Se
(denettawilliams@ aol.com)
(chaserealestatetexas@ gmail.com)
Kenneth S. Cannata
(Kenneth.C annata@ fortbendcountytx.gov)
Gut
----------------~----------~
mey for the FBISD Parties
EXHIBITA
CAUSE NO. 23
DENETTA R. WILLIAMS, IN THE DISTRICT COURT OF
FORT BEND COUNTY, TEXAS
SONYA JONES, Defendant/Contestee;
FORT BEND LS.D. TRUSTEES,
Sued In Their Official Capacity,
JUDY DAE, DAVID HAMILTON,
SHIRLEY ROSE GILLIAM,
KRISTEN MALONE, RICK GARCIA
and ANGIE HANAN, COUNTY OF
FORT BEND, TEXAS, Sued In His
Official Capacity, JOHN OLDHAM,
Election Administrator,
Defendants. 400TH JUDICIAL DISTRICT
SONYA JONES JUDY DAE, DAVID HAMILTON, SHIRLEY ROSE
KRISTEN MALONE, RICK GARCIA, AND ANGIE HANAN’S PLEA TO THE
JURISDICTION MOTION FOR SUMMARY JUDGMENT AND MOTION FOR
ATTORNEYS’ FEES
Sonya Jones, Judy Dae, David Hamilton, Shirley Gilliam, Kristen Malone, Rick
Garcia, and Angie Hanan (the FBISD Parties) file their Plea to the Jurisdiction, Motion for
Summary Judgment, and Motion for Attorneys’ Fees as follows:
On March 18, 2020, Governor Greg Abbott authorized local political subdivisions to
postpone their May 2, 2020, elections until November 3, 2020, due to the COVID 19
pandemic. The Fort Bend Independent School District (the District) exercised its authority
under that proclamation. Former Trustee Denetta Williams, the plaintiff in this action, took
office following an election conducted in November 2020 under the authority granted to the
District by Governor Greg Abbott’s March 18, 2020, proclamation.
Well over two years later, on April 20, 2023 — on the eve of the subsequent election
where early voting was already underway — Williams filed suit against each member of the
District’s Board of Trustees. Williams sought to stop the election by seeking a judicial
declaration rendering the 2020 election invalid. The District and the named Trustees filed a
Plea to the Jurisdiction in response, which was granted. Williams’ lawsuit was dismissed with
prejudice and she did not appeal. Williams went on to lose the May 2023 election, placing
fifth among the candidates. Sonya Jones, one of the defendants in this action, prevailed and
was swom in as a District trustee on May 15, 2023. Now, Williams files an almost identical
petition against the same parties, with the addition of Jones, to invalidate the results.
This Court should deny Williams’ request for declaratory relief and dismiss this case
for lack of subject-matter jurisdiction. And, if this Court finds thatit has jurisdiction, it should
nevertheless dismiss Williams’ case on several grounds, including her failure to comply with
the statutory pre-requisites to suit, quasi-estoppel, and res judicata. The FBISD Parties also
request that this Court award their attorneys’ fees against Williams.
FACTUAL AND PROCEDURAL BACKGROUND
On March 18, 2020, at the onset of the COVID-19 pandemic, Govemor Abbott
authorized political subdivisions to postpone their May 2, 2020, elections to the November 3,
2020, uniform election date. See The Governor of the State of Tex., Proclamation (Mar. 18,
2020), https://bit.ly/3oZwgst. The proclamation “allow[ed] political subdivisions that would
otherwise hold elections on May 2, 2020, to move their general and special elections for 2020
only to the next uniform election date, occurring on November 3, 2020, without otherwise
adjusting the term of office. . . .” Id. (emphasis added). On that same day, the Secretary of
State issued Election Advisory No. 2020-12. Tex. Sec’y of State, Election Advisory No.
2020-12 (Mar. 18, 2020), https://bit.ly/3LoI5zE. Election Advisory 2020-12 interpreted the
proclamation.
Understandably, political subdivisions across the state asked how the Governor’s
proclamation would affect the term lengths for newly-elected officials. The Secretary of
State’s Office responded as follows: “Your newly elected office holders in November will
have a shorter term. Their next election will return back to the May date.” See Email from
Christina Worrell Adkins, Legal Director of the Elections Division for the Office of the
Secretary of State, to Texas Political Subdivisions (Mar. 19, 2020)) at 1, attached as Exhibit
A
Williams applied for a trustee position on the District’s Board. The term was originally
intended to run from May 2020 to May 2023. See Fort Bend Indep. Sch. Dist., A pplication of
Denetta Williams for a Place on the May 2, 2020, General Election Ballot (Feb. 14, 2020),
https://bit.ly/3HsZsOL. However, pursuant to the proclamation, the position’s term was
effectively shortened. The Governor’s proclamation was not self-executing. See The
Governor of the State of Tex., supra (stating that it would “allow political subdivisions” to
move the election date) (emphasis added); see also Tex. Sec’y of State, supra (“In order to
utilize this move, the governing body of the political subdivisions holding the elections must
order the postponement of their election to the November 3, 2020, uniform election date.”)
(emphasis in original). In accordance with the Governor’s March 18, 2020, proclamation, the
District amended its election order and postponed the May 2, 2020, election to November 3,
2020. See May 2020 Election Amendment Order at 1, attached as Exhibit B. Williams was
elected to the position.
It is undisputed that Williams was sworn in as a trustee and served on the District’s
Board from November 2020 to May 2023. Consistent with the law, the District called the
subsequent election for Williams’ then-held position number in January 2023. In response,
Williams challenged the order under which she was elected as void and, also, challenged the
District’s order calling the May 2023 election. See Original Petition and Application for
Temporary Restraining Order, Temporary Injunction, and Permanent Injunction, generally,
Williams v. Fort Bend I.S.D. Board of Trustees, et al, No. 23-DCV-303549 (434th Dist. Ct.,
Fort Bend County, Tex. April 21, 2023), attached as Exhibit C. After the District filed a Plea
to the Jurisdiction, a hearing was held and the court granted the District’s Plea, dismissing
Williams’ claims with prejudice. See Order Dismissing with Prejudice Plaintiffs claims,
generally, Williams v. Fort Bend 1.S.D. Board of Trustees, et al, No. 23-DCV-303549 (434th
Dist. Ct., Fort Bend County, Tex. May 1, 2023), attached as Exhibit D. The May 2023 election
has since concluded. Ms. Jones was announced the winner on May 6, 2023. See Williams’
Third Amended Petition! (Petition or Pet.) at { 2. She replaced Williams as a Trustee.
Williams now attempts to contest the May 2023 election results by filing her Third
Amended Petition for the same reasons she attempted to stop the election from occurring in
the first place. And, in doing this, she completely disregards the fact that her claims against
the FBISD Parties have already been dismissed with prejudice. Williams does not have
! Williams filed her live petition on September 5, 2023, as her Fourth Amended Petition, however,
it is truly her Third Amended Petition and is titled as such in the document itself. See generally,
Pet.
standing, she didn’t follow the required statutory prerequisites to contest an election, and her
claims are barred by estoppel and res judicata. If, however, Williams could establish standing,
she does not state any valid claim of relief. Accordingly, this Court should grant the FBISD
Parties’ Plea, Motion for Summary Judgment, and Motion for Attorneys’ Fees.
PLEA TO THE JURISDICTION
A Standard of Review.
A plea to the jurisdiction is the appropriate procedural vehicle for challenging a trial
court’s exercise of subject-matter jurisdiction. See City of El Paso v. Heinrich, 284 S.W.3d
366, 378 (Tex. 2009). Depending upon the nature of the jurisdictional challenge, a court is
required to employ one of two distinct analytical approaches when assessing the challenge.
See id. When a jurisdictional challenge attacks the adequacy of the pleadings, a court must
determine if the pleader has set forth allegations that affirmatively demonstrate the court’s
jurisdiction to hear the case. See id.
When a movant challenges the existence of jurisdictional facts, the court is also
required to consider relevant evidence submitted by the parties when necessary to resolve
the jurisdictional issues involved. See id. When the court considers jurisdictional evidence,
the analysis mirrors that of a traditional motion for summary judgment. See id. In other
words, once a governmental entity comes forward with evidence negating an essential
jurisdictional fact, the burden shifts to the plaintiff to produce sufficient evidence to create
a genuine question of material jurisdictional fact. See id.; see also City of Houston v.
Harris, 192 S.W.3d 167, 175 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding
that it is unquestionably the plaintiff's burden to adduce evidence to demonstrate the
existence of a fact issue if a governmental entity introduces evidence controverting
jurisdictional facts).
A governmental entity, including a Texas school district like the District, enjoys
governmental immunity which renders it immune from suit and liability absent an
applicable statutory waiver of its immunity. See Manbeck v. Austin Indep. Sch. Dist., 381
S.W.3d 528, 530-31, 533 (Tex. 2012); see also Harris Cnty. v. Sykes, 136 S.W.3d 635, 639
(Tex. 2004) (“Governmental immunity operates like sovereign immunity to afford similar
protection to subdivisions of the State, including counties, cities, and school districts.”). A
plaintiff must affirmatively demonstrate the court’s subject-matter jurisdiction by
identifying a “clear and unambiguous” statutory waiver of immunity, and the Court is
without power to hear the case unless the plaintiff meets its burden. Oncor Elec. Delivery
Co. LLC v. Dallas Area Rapid Transit, 369 S.W.3d 845, 849 (Tex. 2012); see also DART
v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). A dismissal with prejudice is appropriate
when a trial court lacks subject-matter jurisdiction because of the governmental immunity
bar. Sykes, 136 S.W.3d at 639.
B. Because Williams lacks standing this C ourt lacks subject matter jurisdiction.
The Court need not decide whether Williams has viable claims because she has not
established standing. “Standing is a prerequisite to subject-matter jurisdiction, and subject-
matter jurisdiction is essential to a court's power to decide a case.” M.D. Anderson Cancer
Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001). As such, “a plea to the jurisdiction is a proper
vehicle to challenge a plaintiff's standing to maintain suit.” Tex. Med. Res., LLP v. Molina
Healthcare of Tex., Inc., 620 S.W.3d 458, 463 (Tex. App.—Dallas 2021), aff'd, 659 S.W.3d
424 (Tex. 2023) (citing Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015).
Determining whether a plaintiff has standing “requires careful judicial examination of a
complaint's allegations to ascertain whether the particular plaintiff is entitled to an
adjudication of the particular claims asserted.” Heckman v. Williamson Cnty., 369 S.W.3d
137, 156 (Tex. 2012) (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)).
1 Williams’ Petition is not a valid election contest, thus, she has not demonstrated
that she has a private right of action.
“An election contest is a special proceeding created by the Legislature to provide a
remedy for elections tainted by fraud, illegality or other irregularity.” Blum v. Lanier, 997
S.W.2d 259, 262 (Tex. 1999). “In an election contest, a district court's authority to act is
limited to the subjects or grounds expressly or impliedly authorized by the election code.”
City of Granite Shoals v. Winder, 280 S.W.3d 550, 557 (Tex. App.—Austin 2009, pet.
denied). And, importantly, “[a] lawsuit seeking a declaration that the State or its subdivisions
do not have the authority to hold an election is ... not an election contest.” Walker Cnty. ESD
No. 3 v. City of Huntsville, 658 S.W.3d 807, 813 (Tex. App—Waco 2022, pet. filed) (citing
id. at 557-58). Here, that is precisely what Williams is doing: seeking to render the May 2023
election void on the grounds that the District’s Board of Trustees acted “in an egregious and
malicious violation of Williams’ constitutional rights [by] plac[ing] position 5 on the ballot
knowing the term of office for the seat was three years.” Pet. at § 18. Specifically, Williams
asserts that “the [B]oard of [T]rustees did not have the legal authority to reduce [her] term in
office.” Id. at § 34. This is not an election contest as a matter of law. See Walker Cnty. ESD
No. 3, 658 S.W.3d at 813. As such, Williams has not demonstrated that she has a private right
of action under the Election Code to bring her claims. See Patel v. Rios, No. 01-20-00856-
CV, 2022 WL 3649348, at *7 (Tex. App. Aug. 25, 2022), review denied (Jan. 13, 2023)
(holding that, “[iJn the absence of a private right of action in his favor, [the Plaintiff] lack[ed]
standing to pursue his claim.”)’
2 Wiliams does not have (and has not demonstrated) standing to sue for
violations of the Joint Election Statute by demonstrating that she has a private
right of action.
As stated above, absent a private right of action under a statute, there is no standing.
See Plea at Part B.1; see also Patel, 2022 WL 3649348, at *7. Here, Williams has not
established that she has a private right of action to enforce the Joint Election Statute. See
generally, Pet.; see also Tex. Educ. Code § 11.0581. Thus, Williams does not have standing
to bring her Joint Election claim and it should be dismissed.
3 Williams lacks standing because her claims are not redressible.
“The third element of standing requires that the plaintiff's alleged injury be ‘likely
to be redressed by the requested relief.’” Id. (quoting Allen, 468 U.S. at 751). Here,
Williams’ alleged injury, if any, would not be redressed by her requested relief.
‘
1 This Court does not have the authority to render the May 2023
election void because the FBISD Parties shortened Williams’
election term.
Williams’ alleged injury is her claim that she was unlawfully denied the opportunity
to serve a full three-year term as a Trustee for the District. See generally, Pet. For this very
reason, she asks this Court to declare the May 2023 election void. The District conducted
its election pursuant to the Secretary of State’s guidelines. Exh. A at 1 (“Your newly elected
office holders in November will have a shorter term. Their next election will retum back to
the May date.”). Which was in accord with express language from the Governor of Texas.
See The Governor of the State of Tex., supra. The proclamation specifically “allow[ed]
political subdivisions that would otherwise hold elections on May 2, 2020, to move their
general and special elections for 2020 only to the next uniform election date, occurring on
November 3, 2020, without otherwise adjusting the term of office. . . .” Id. (emphasis added).
The Governor’s proclamation is the only grant of authority — under the Disaster Act — to
change election dates.” And, notably, when Harris County sued the Governor alleging that he
lacked authority under the Texas Disaster Act to issue an executive order prohibiting local
governments from requiring face coverings, the Supreme Court of Texas found the executive
orders to be a valid exercise of Governor Abbott’s authority. Abbott v. Harris Cnty., 672
S.W.3d 1, 19 (Tex. 2023). Further, the court found that the County was not likely to succeed
on the merits of its clam. Government. Id. at 21.
A declaratory judgment by this Court rendering the May 2023 election void would not
bind the appropriate election officials — meaning that “the effect of the court’s judgment ...
would not provide relief.” Lewis v. Governor of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019)
(emphasis omitted). This is so because the District’s Board acted with express authority from
the Secretary of State and the Governor. So, taking Williams’ requested relief to its logical
core, this Court would effectively be retroactively ruling that the Govemor and the Secretary
of State both acted unlawfully in granting the District — and every other local government
2 See In re Hotze, 627 S.W.3d 642, 643 (Tex. 2020) (“Governor Abbott issued a proclamation on
March 13, 2020, certifying under the Texas Disaster Act of 1975 (“the Act”) that the novel
coronavirus COVID-19 poses an imminent threat of disaster in all Texas counties. On July 27, the
Governor issued another proclamation, again citing the Act, suspending two provisions of the
Texas Election Code as they relate to the general election on November 3.”) (first emphasis added).
9
within the state — the authority in 2020 to postpone their elections. In other words, this Court
would be retroactively deeming an exercise of both the executive’s and the legislative’s
powers unlawful. See Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 139 (Tex. 2010)
(noting that one fundamental purpose of the presumption against retroactivity is to protect the
“people’s reasonable, settled expectations.”). Such a ruling would be an improper collateral
attack on the Executive branch’s lawful exercise of authority and would violate the separation
of power and doctrine. See Tex. Const. art. II, § 1; see also Texas Dep't of Fam. & Protective
Servs. v. Dickensheets, 274 S.W.3d 150, 156 (Tex. App. 2008) (quoting
J ones v. State, 803
S.W.2d 712, 715-16 (Tex. Crim. App. 1991), forthe proposition that the Separation of Powers
doctrine is “violated when one branch unduly interferes with another branch so that the other
branch cannot effectively exercise its constitutionally assigned powers.”). And it would upset
every citizen’s reasonable, settled expectations within the state of Texas with respect to the
electorate. See Robinson, 335 S.W.3d at 139. This Court should not do this.
If Williams wanted to contest the 2020 election and argue that Govemor
A bbott acted
unlawfully, Williams should have done so prior to that election. She did not. Further, because
Williams’ sought-after relief would not redress her alleged injury, and because it would
operate to retroactively render exercises of power by the legislative and executive branches
unlawful, she lacks standing.
ii. Even if the Joint Election Statute was violated, Williams has not
demonstrated that this Court has the authority to render the May
2023 election void by reason of that violation.
Williams brings claims under the Joint Election Statute. Assuming these claims aren’t
baseless (and they are), this Court does not have the authority to render the May 2023 election
10
void if the Joint Election Statute was violated by the District. See generally, Pet.; see also
Patel, 2022 WL 3649348, at *7. In fact, “Texas law does not allow a trial court to enjoin an
election ordered by a co-equal branch of government, even if that election is subjectto being
later determined that it was conducted in violation of Texas law.” Rodriguez v. Beaumont
Indep. Sch. Dist., 413 S.W.3d 524, 535 (Tex. App.—Beaumont 2013, no pet.) (emphasis
added) (citing Blum, 997 S.W.2d at 263 & n. 6). Accordingly, Williams claims under
the Joint
Election Statute are not redressible.
Cc To the extent Williams seeks reinstatement, her action is moot.
“Generally, a case is determined to be moot ‘when the issues presented are no longer
“live” or the parties lack a legally cognizable interest in the outcome.” See Camarena v. Tex.
Emp't Comm'n, 754 S.W.2d 149, 151 (Tex. 1988) (quoting Murphy v. Hunt, 455 U.S. 478,
481 (1982)). In the context of elections, when an individual’s term expires, any action for
reinstatement becomes moot:
When Martinez filed his declaratory judgment action seeking reinstatement, his term
had not expired, and he presented a live controversy. However, as Martinez
acknowledges in his motion for rehearing, when his term expires following the
November 3, 2020 election, his action for reinstatement becomes moot.
City of Leon Valley v. Martinez, No. 04-19-00879-CV , 2020 WL 6748723, at*1 (Tex. App—
San Antonio Nov. 18, 2020, no pet.) (citations omitted). Williams’ term expired in May 2023.
This means that, to the extent she seeks reinstatement to the District’s Board of Trustees, she
has not presented to the Court a live controversy. Williams’ claim is moot.
D The FBISD Parties did not act ultra vires, so governmental immunity is
maintained.
In her Petition, Williams refers to the May 2023 election as being ultra vires. Pet. at
11
99 2, 23, 27, 30, 32. (“It is ultra vires and exceeds the board’s authority under the Texas
Education Code...”). However, Williams’ attempt to assert claims that the FBISD Parties
who conducted the election acted ultra vires fail as a matter of law.
Under the doctrine of sovereign immunity, the state cannot be sued without its consent.
See City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). Sovereign immunity
protects state agencies, while governmental immunity protects political subdivisions of the
state, including school districts. See Witchita Falls State Hosp. v. Taylor, 106 S.W.3d 692,
694 n.3 (Tex. 2003). Without a valid waiver of immunity, courts lack subject-matter
jurisdiction to hear claims against school districts. See id.
Ina suit against a governmental entity or its officials, the plaintiff must affirmatively
demonstrate the court’s subject matter jurisdiction by alleging a valid waiver of immunity.
See DART, 104 S.W.3d at 542. The court cannot hear a case unless a plaintiff does so. See id.
at 542, 544; Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999). If a governmental
official allegedly acted ultra vires, that may be grounds for subject-matter jurisdiction. See
Franka v. Velasquez, 332 S.W.3d 367, 382 (Tex. 2011) (“With that [ultra vires] exception,
an employee sued in his official capacity has the same governmental immunity, derivatively,
as his government employer.”). “To fall within this ultra vires exception, a suit must not
complain of a government officer’s exercise of discretion, but rather must allege, and
ultimately prove, that the officer acted without legal authority or failed to perform a purely
ministerial act.” City of El Paso, 284 S.W.3d at 372. An ultra vires claim based on actions
taken without legal authority has two fundamental components: (1) authority giving the public
official some, but not absolute, discretion to act, and (2) conduct outside of that authority. See
12
Hall v. McRaven, 508 S.W.3d 232, 239 (Tex. 2017).
Williams’ claims falters on the second prong. On March 18, 2020, Governor A bbott
granted school districts discretionary authority to postpone their May 2, 2020 elections until
November 3, 2020. See The Governor of the State of Tex., supra; see also Tex. Sec’y of State,
supra; Exh. A at 1. The District acted within the scope of that authority. See Exh. B at 1.
Because the FBISD Parties never acted ultra vires, governmental immunity is retained and
this Court lacks subject-matter jurisdiction to hear this case. See Hall, 508 S.W.3d at 239.
MOTION FOR SUMMARY JUDGMENT
A Standard of Review
The standard of review in a summary judgment proceeding is well settled. When a
defendant moves for summary judgment on an affirmative defense, they are entitled to
summary judgment if they conclusively establish each of the essential elements of an
affirmative defense as a matter of law. See Montgomery v. Kennedy, 669 S.W.2d 309, 310-
11 (Tex. 1984); see also Marshall v. Sackett, 907 S.W.2d 925, 930 (Tex. App.—Houston [1st
Dist.] 1995, no writ). Evidence is conclusive only if reasonable persons could not differ in
their conclusions. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). But, when
a party opposing summary judgment judicially admits a fact in their pleadings, summary
judgment may be based on that party’s judicial admissions. See Lyons v. Lindsey Morden
Claims Mgmt., 985 S.W.2d 86, 92 (Tex. App.—El Paso 1998, no pet.). If the defendant
produces sufficient evidence to establish the right to summary judgment, the plaintiff must
present contradictory evidence that gives rise to a fact issue in order to avoid summary
judgment. See Marshall, 907 S.W.2d at 930; see also Aspenwood Apartment Corp. v. Link,
13
01-05- 00555-CV, 2007 WL 2832985, at *6 (Tex. App.—Houston [1st Dist.] Sept. 27, 2007,
pet. denied).
B. Because Williams’ claims have already been dismissed with prejudice by a court
of competent jurisdiction, they are barred by res judicata.
Williams seemingly couches her claims within the context of an election contest in an
attempt to take another bite out of the proverbial apple. This is not an election contest. The
claim she is truly asserting — that the FBISD Parties acted ultra vires and unconstitutionally
by calling and conducting the May 2023 election — has already been dismissed with prejudice
by the 434th District Court of Fort Bend County. See Exhs. C, D. This Court should follow
suit.
The doctrine of “[r]es judicata, or claims preclusion, prevents the relitigation of aclaim
or cause of action that has been finally adjudicated, as well as related matters that, with the
use of diligence, should have been litigated in the prior suit.” Barr v. Resolution Tr. Corp. ex
rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992) (citing Gracia v. RC Cola-7-Up
Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984)). “The policies behind the doctrine reflect the
need to bring all litigation to an end, prevent vexatious litigation, maintain stability of court
decisions, promote judicial economy, and prevent double recovery.” Id. at 629 (citing Zollie
Steakley & Weldon U. Howell, Jr., Ruminations on Res Judicata, 28 Sw.LJ. 355, 358-59
(1974)). In order to properly rely on res judicata, Jones must prove “(1) a prior final judgment
on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity
with them; and (3) a second action grounded on the same claims as those raised or that could
have been raised in the first action.” Samuel v. Fed. Home Loan Mortg. Corp., 434 S.W.3d
14
230, 233 (Tex. App—Houston [1st Dist.] 2014, no pet.). These elements are easily satisfied.
1 The prior judgment was final and on the merits.
A dismissal with prejudice on a plea to the jurisdiction based on sovereign immunity
or lack of standing supports a res judicata defense. See Better Bus. Bureau of Metro. Houston,
Inc. v. John Moore Services, Inc., 500 S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2016,
pet. denied) (citing Cf. Harris Cty., 136 S.W.3d at 640, for its holding that “dismissal with
prejudice based on plea to jurisdiction supports res judicata defense because it fully and finally
adjudicates whether claims asserted ... come within Texas Tort Claims Act's waiver of
sovereign immunity); see also Wolter v. Delgatto, No. 14-05-00055-CV, 2006 WL 664214,
at *3 (Tex.A pp.—Houston [14th Dist.] Mar. 16, 2006, no pet.) (finding that dismissal with
prejudice for lack of standing was on merits and “the dismissed claims were finally
determined”). The prior court granted the previous defendants’, the District’s former Board
of Trustees, Plea to the Jurisdiction and dismissed Williams’ claims with prejudice. See Exh.
D. Within their Plea, the Trustees argued many grounds, including sovereign immunity and
lack of standing. See Response to Plaintiff's Original Petition and Application for Temporary
Restraining Order and Plea to the Jurisdiction, generally, Williams v. Fort Bend I.S.D. Board
of Trustees, et al, No. 23-DCV-303549 (434th Dist. Ct, Fort Bend County, Tex. May 1,
2023), attached as Exhibit E. Thus, this element is satisfied.
2 The second element of res judicata, identity of parties or those in privity with
them, is satisfied.
The FBISD Parties, with the exception of Jones, were all involved in the last suit and
dismissed with prejudiced. Compare Pet, with, Exh. C. There is identity of the parties with
15
respect to them. Moreover, Jones is in privity with the former and current Board of Trustees.
“Privity connotes those who are so connected with a party to the judgment in the law such
that the party to the judgment represented the same legal right.” Samuel, 434 S.W.3d at 234
(citing Gaughan v. Spires Council of Co-Owners, 870 S.W.2d 552, 555 (Tex.A
pp— Houston
[1st Dist.] 1993, no writ)). A party is in privity if “its interests can be represented by a party
to the action.” Id. at 235. Here, Jones is a current member of the District’s Board of Trustees.
Accordingly, she represents the Board’s interest and is in privity.
3. This action is grounded on the same claims as the previous action Williams
brought.
Even a cursory review of Williams’ Petition in this case against the FBISD Parties,
and the one she filed against the former Board of Trustees, reveals they are largely duplicative
of one another. This is demonstrated below.
27. Pursuant to the UDJA, Plaintiff seeks a declaratory judgment of the May
6, 2023, school board election:
a. Itis ultra vires and exceeds the board ‘s authority under the Texas
Education Code Chapter 11 Section 11.059 TERMS (a).
16. Pursuant to the UDJA, Plaintiff seeks a declaratory judgment of the
ORDER OF ELECTION:
a. Is ultra vires and exceeds the Board’s authority under the Texas
Education Code Chapter 11 Section 11.059 (a).
Compare Pet. at 27, with, Exh. C at 116.
16
18.On January 9, 2023, the board of trustees, in an egregious and malicious
violation of Williams’ constitutional rights, placed position 5 on the ballot
knowing the term of office for the seat is three years (see exhibit D).
I January 9, 2023, Kristen Malone, Board President, with malice, signed
an order placing Trustee, position 5 on the ballot knowing my term of
office did not expire until November 2023 (see exhibit E)
Compare Pet. at 118, with, Exh. C at Part VII.
34. Article 2 Section 1 prohibits the three branches of government from
exercising any ppwer properly attached to the other. Considering the
authority to enact laws of the State is attached to the legislature, the
board of trustees did not have the legal authority to reduce Williams’
term in office.
19. The board of trustees is a body corporate, created by the legislature and
is constitutionally barred from enacting laws of the State. Therefore, the
Board of Trustees decision to reduce the term of the Plaintiff's office
below the minimum term of office enacted by law is ultra vires and a
flagrant violation of the Plaintiffs Constitutional Rights.
Compare Pet. at 34, with, Exh. C at 919.
The heart of Williams’ argument is that the District’s Board of Trustees did not have
the proper authority to hold the May 2023 election. This is exactly what she argued in her
previous suit that was dismissed with prejudice by the 434th District Court of Fort Bend
County. See Exhs. C, D, E. As such, this Court should grant the District’s Motion for
Summary Judgment and dismiss Williams’ claims with prejudice.
17
Cc Williams is estopped from challenging the order under which she was elected.
Parties may not “play fast and loose with the courts” for their own purposes. Cricket
Commce'ns, Inc. v. Trillium Indus., Inc., 235 S.W .3d 298, 304 (Tex. App.—Dallas 2007, no
pet.). Similarly, a party cannot assert, “to another’s disadvantage, a right inconsistent” with a
previously taken position under the doctrine of quasi-estoppel. Steubner Realty 19, Ltd. v.
Cravens Road 88, Ltd., 817 S.W.2d 160, 164 (Tex. App—dHouston [14th Dist.] 1991, no
pet.). The doctrine requires only two elements: (1) “a previous action”; and (2) “a subsequent
inconsistent action which is thereby sought to be estopped.” Id. at 607-08.
The FBISD Parties easily satisfy both elements. Here, Williams was elected during the
November 2020 election authorized by the Governor’s proclamation that she now challenges.
She accepted the rights and privileges of office. But she now claims — over two years later —
that the order was unlawful because it effectively shortened her term. Further, Williams
participated in the May 2023 election. To now argue that it was void is wholly inconsistent
with the campaign efforts she undertook and the fact that she served in office as a result of
what she contends was the void 2020 election. Taking Williams’ arguments to their illogical
conclusion, she was never a trustee at all. Had she won re-election in 2023, we most likely
would not even be here. But she lost. In any event, quasi-estoppel prevents her from taking
these inconsistent positions.
D Williams’ claim that the FBISD Parties violated the Joint Election Statute is
legally and factually wrong as a matter of law.
Assuming Williams could establish standing, her claim under the Joint Election
Statute fails on the merits. To demonstrate, Section 11.0581(a) of the Texas Education Code
18
provides that “[aJn election for trustees of an independent school district shall be held on
the same date as ... the election for the members of the governing body of a municipality
located in the school district ... [or]... the general election for state and county officers...”
Tex. Educ. Code § 11.0581. Pursuant to this, the District contracted with Fort Bend County
to have its election for Trustees on May 6, 2023 — the date the County conducted its general
election. See Fort Bend ISD Election Order, attached as Exhibit F; see also Fort Bend
County Election Order, attached as Exhibit G. Williams goes so far as to acknowledge this
in her Petition, stating that “[o]n April 17, 2023, John Oldham (the election
admnisitrator for Fort Bend County) and Fort Bend ISD executed ajoint election agreement
and contract for election services.” Pet. at § 19. What is more, other political subdivisions,
cities, municipal utility districts, and emergency services districts located in Fort Bend
County had their election on May 6, 2023, as well. See Fort Bend County General &
Special Election Results, https://results.enr.clarityelections.com/TX /Fort_Bend/117749/w
eb.317647/#Hsummary?category=C_4 (last visited Aug. 31, 2023). In short, Williams’
claims that the FBISD Parties violated the Joint Election Statute are without merit and
should not be entertained.
E To the extent this is a valid election contest, Williams’ failure to comply with the
Texas Election Code’s mandatory statutory prerequisites to filing suit is grounds
to dismiss her Petition.
Even assuming Williams’ Petition is an election contest, she failed to properly
comply with the unambiguous prerequisites provided in the Texas Election Code. To
demonstrate, the Texas Election Code provides, in pertinent part and in regard to contesting
a primary election of a candidate to a political subdivision, that:
19
(c) A contestant must file the petition not later than the later of the 15th
day after the date the election records are publicly available under Section 1.012 or
the official result is determined in a contest of:
(1) a primary or runoff primary election ...
(d) A contestant must deliver, electronically or otherwise, a copy of the
petition to the secretary of state by the same deadline prescribed for the filing
of the petition.
Tex. Elec. Code § 232.008 (emphasis added). This demonstrates that Williams had 15 days
from the date the election records were publicly available or the results were determined
to file the petition and deliver it to the secretary of state.
The District’s election records were made publicly available on May 6, 2023.3 The
official result of the primary election was also determined on May 6, 2023.‘ Thus, Williams
had 15 days from May 6, 2023, to file her petition and deliver a copy to the secretary of
state. It is now well past the deadline and, upon the FBISD Parties’ review, Williams did
not deliver a copy to the secretary of state until September 2023. Williams’ failure to comply
prohibited the accelerated procedures under Section 232.012 of the Texas Election Code from
properly and timely occurring. See Tex. Elec. Code § 232.012. Accordingly, rendering the
May 2023 election void would not give the District sufficient time to conduct a new
election. See Maldonado v. Johnson, No. 04-18-00599-CV, 2018 WL 4517551, at *4 (Tex.
App.—San Antonio Sept. 21, 2018, no pet.) (“Even if we were to reverse the trial court's
3 See Fort Bend County Election Records, (May 6, 2023), results.enr.clarityelections.com/TX /Fort
Bend/117749/web.317647/#detail/0023.
4 See Board of Trustees Election Results, (May 6, 2023), https://www.fortbendisd.com/boardel
ections; see also Pet. at § 2.
20
judgment and the trial court were to order a new primary nunoff election, there is
insufficient time to conduct a new primary runoff election without interfering with the
ordinary process of the general election.”); see also Pena v. Hernandez, No. 13-10-00342-
CV, 2010 WL 3722245, at *1 (Tex. App.—Corpus Christi-Edinburg Sept. 20, 2010, no
pet.) (“It is well-settled Texas law that, where a contest between candidates for nomination
in a party primary election cannot be tried and a final decree cannot be entered in time for
election officials to comply with the statutory deadlines for preparing for and conducting
the general election, the election contest becomes moot and the issues no longer
justiciable.”) (collecting cases). This Court should dismiss due to Williams’ failure to
comply with these provisions.®
MOTION FOR ATTORNEYS’ FEES
PURSUANT TO THE TEXAS EDUCATION CODE
Section 11.161 of the Texas Education Code allows for the award of attorneys’ fees
and costs for civil suits brought under state law against an officer of an independent school
district acting under color of office if “(1) the court finds that the suit is frivolous,
unreasonable, and without foundation; and (2) the suit is dismissed or judgment is for the
defendant.” Tex. Educ. Code § 11.161. Williams’ claims against the FBISD Parties, who are
current officers for the District as their Board of Trustees, are frivolous, unreasonable, and
without foundation, and the FBISD Parties seek the dismissal of the claims against them
5 The FBISD Parties note that failure to comply with the notice provisions under the Election Code
is not jurisdictional. See City of Houston v. Bryant, 516 S.W.3d 47, 54 (Tex. App.—Houston [1st
Dist.] 2017, pet. denied). Nevertheless, “other consequences may flow from a party’s failure to
comply with the requirement.” Id. (quoting City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex.
2009)). Th
Preview
CAUSE NO 23 DENETTA R. WILLIAMS, IN THE DISTRICT COURT OF FORT BEND COUNTY, TEXAS SONYA JONES, Defendant/C ontestee; FORT BEND I.S.D. TRUSTEES, Sued In Their Official Capacity, JUDY DAE, DAVID HAMILTON, SHIRLEY ROSE GILLIAM, KRISTEN MALONE, RICK GARCIA and ANGIE HANAN, COUNTY OF FORT BEND, TEXAS, Sued In His Official Capacity, JOHN OLDHAM, Election Administrator, Defendants. 400TH JUDICIAL DISTRICT DEFENDANT RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Sonya Jones, Judy Dae, David Hamilton, Shirley Rose Gilliam, Kristen Malone, Rick Garcia, and Angie Hanan (the FBISD Parties) file their Response to Plaintiffs for Summary Judgment as follows: On March 18, 2020, Governor Greg Abbott authorized local political subdivisions to postpone their May 2, 2020, elections until November 3, 2020, due to the COVID 19 pandemic. The Fort Bend Independent School District (the District) exercised its authority under that proclamation. Former Trustee Denetta Williams, the plaintiff in this action, took office following an election conducted in November 2020 under the authority granted to the District by Governor Greg Abbott’s March 18, 2020, proclamation. Well over two years later, on April 20, 2023 — on the eve of the subsequent election where early voting was already underway — Williams filed suit against each member of the District’s Board of Trustees. Williams sought to stop the election by seeking a judicial declaration rendering the 2020 election invalid. The District and the named Trustees filed a Plea to the Jurisdiction in response, which was granted. Williams’ lawsuit was dismissed with prejudice and she did not appeal. Williams went on to lose the May 2023 election, placing fifth among the candidates. Sonya Jones, one of the defendants in this action, prevailed and was swom in as a District trustee on May 15, 2023. Now, having filed a nearly identical petition against the same parties, plus Jones, to invalidate the results, Williams moves for summary judgment on her claims. Williams’ motion lacks merit and should be denied. Argument A Williams’ claims suffer from fatal jurisdictional defects and, even if the Court had jurisdiction over Williams’ claims, the FBISD Parties are entitled to summary judgment. Williams’ motion seeks summary judgment on her own claims. But, her claims suffer from fatal jurisdiction defects and fail on the merits. Accordingly, the FBISD Parties filed a comprehensive plea to the jurisdiction and moved for summary judgment on each of the claims set forth in Williams’ third amended petition. See FBISD Parties’ Plea to the Jurisdiction and Motion for Summary Judgment filed on September 22, 2023 (on file) and FBISD Parties’ Supplement to their Plea to the Jurisiction and Motion for Summary Judgment filed on October 17, 2023 (on file) (collectively, The FBISD Parties’ Plea and Motion). Because the FBISD Parties’ Plea and Motion conclusively establishes that Williams’ claims suffer from incurable jurisdictional defects and should be dismissed on summary judgment as a matter of law, the FBISD Parties’ arguments necessarily defeat Williams’ summary judgment arguments as a matter of law. See id. (establishing fatal jurisdictional defects and conclusively demonstrating why Williams’ claims should be dismissed on summary judgment). The FBISD Parties’ Plea and Motions and Willaims’ motion are set for hearing on the same date and time and, as such, in the interests of judicial economy, the FBISD Parties will not repeat their arguments here but, instead, will incorporate them by reference pursuant to Texas Rule of Civil Procedure 58. See Tex. R. Civ. P. 58 (permitting incorporation by reference); see also the FBISD Parties’ Plea and Motion attached as Exhibit A; the FBISD Parties’ Supplemental Plea and Motion attached as Exhibit B. Additionally, the FBISD Parties incorporate John Oldham’s summary judgment response by reference pursuant to Rule 58. See Tex. R. Civ. P. 58. B Williams has failed to carry her summary judgment burden. Even if the Court found it had jurisdiction, and was not persuaded by the District’s summary judgment arguments, Williams has failed to carry her summary judgment burden. As the plaintiff, Williams is required to show that there is no genuine question of material fact as to each element of her claims — stated differently, Williams must establish her claims as a matter of law. See Tex. R. Civ. P. 166a(a); see also Al's Formal Wear of Houston, Inc. v. Sun, 869 S.W.2d 442, 444 (Tex. App.—Houston [1st Dist.] 1993, writ denied). She fails to do this and just a cursory review of Williams’ motion demonstrates as such. Williams’ attempt to show otherwise is entirely conclusory. See Williams’ Motion (on file). Similarly, Williams fails to prove the misguided proposition that her motion rests on, i.e., her claim that the District’s May 2023 election was not joint. See id. And that’s her burden. Instead, Williams offers the Court only her blank assertions that the election was not joint. See id. Williams’ failure to carry her evidentiary burden on summary judgment, standing alone, requires denial of her motion. Cc Williams’ motion must be denied to the extent that it seeks summary judgment on claims against parties that she added to this litigation after moving for summary judgment. Even if Williams’ summary judgment arguments were meritorious (and they are not), she is still not entitled to summary judgment on all of her claims. After filing her motion for summary judgment, Williams amended her petition to add new parties — who have not yet been served — and assert new claims. See Williams’ Fourth Amended Petition filed on October 19, 2023 (on file). The Court cannot grant summary judgment on claims or against partiest that were not included in Williams’ third amended petition. See Johnson v. Rollen, 818 S.W.2d 180, 183 (Tex. App.—Houston [1st Dist.] 1991, no writ). As such, even if the Court were to entertain Williams’ motion, it should deny the motion as to the new parties and new claims. Conclusion Because Williams’ claims fail as a matter of law, she is not entitled to summary judgment. Moreover, Williams failed to carry her summary judgment burden. Accordingly, this Court should deny Williams’ motion for summary judgment. Respectfully submitted, ROGERS, MORRIS & GROVER, L.L.P a 2 ens BAN _ ATHAN GRIFFIN BRUSH ite Bar No. 24045576 jbrush@rmgllp.com DILLON BREAZEALE State Bar No. 24131284 dbreazeale@ mmgllp.com 5718 Westheimer, Suite 1200 Houston, Texas 77057 Telephone: 713/960-6000 Facsimile: 713/960-6025 ATTORNEYS FOR THE FBISD PARTIES CERTIFICATE OF SERVICE I hereby certify that on October 31, 2023, I electronically filed the foregoing with the Clerk of Court and a true and correct copy was served via the Myfilerunner system and/or electronic mail as follows: Denetta R. Williams, Pro Se (denettawilliams@ aol.com) (chaserealestatetexas@ gmail.com) Kenneth S. Cannata (Kenneth.C annata@ fortbendcountytx.gov) Gut ----------------~----------~ mey for the FBISD Parties EXHIBITA CAUSE NO. 23 DENETTA R. WILLIAMS, IN THE DISTRICT COURT OF FORT BEND COUNTY, TEXAS SONYA JONES, Defendant/Contestee; FORT BEND LS.D. TRUSTEES, Sued In Their Official Capacity, JUDY DAE, DAVID HAMILTON, SHIRLEY ROSE GILLIAM, KRISTEN MALONE, RICK GARCIA and ANGIE HANAN, COUNTY OF FORT BEND, TEXAS, Sued In His Official Capacity, JOHN OLDHAM, Election Administrator, Defendants. 400TH JUDICIAL DISTRICT SONYA JONES JUDY DAE, DAVID HAMILTON, SHIRLEY ROSE KRISTEN MALONE, RICK GARCIA, AND ANGIE HANAN’S PLEA TO THE JURISDICTION MOTION FOR SUMMARY JUDGMENT AND MOTION FOR ATTORNEYS’ FEES Sonya Jones, Judy Dae, David Hamilton, Shirley Gilliam, Kristen Malone, Rick Garcia, and Angie Hanan (the FBISD Parties) file their Plea to the Jurisdiction, Motion for Summary Judgment, and Motion for Attorneys’ Fees as follows: On March 18, 2020, Governor Greg Abbott authorized local political subdivisions to postpone their May 2, 2020, elections until November 3, 2020, due to the COVID 19 pandemic. The Fort Bend Independent School District (the District) exercised its authority under that proclamation. Former Trustee Denetta Williams, the plaintiff in this action, took office following an election conducted in November 2020 under the authority granted to the District by Governor Greg Abbott’s March 18, 2020, proclamation. Well over two years later, on April 20, 2023 — on the eve of the subsequent election where early voting was already underway — Williams filed suit against each member of the District’s Board of Trustees. Williams sought to stop the election by seeking a judicial declaration rendering the 2020 election invalid. The District and the named Trustees filed a Plea to the Jurisdiction in response, which was granted. Williams’ lawsuit was dismissed with prejudice and she did not appeal. Williams went on to lose the May 2023 election, placing fifth among the candidates. Sonya Jones, one of the defendants in this action, prevailed and was swom in as a District trustee on May 15, 2023. Now, Williams files an almost identical petition against the same parties, with the addition of Jones, to invalidate the results. This Court should deny Williams’ request for declaratory relief and dismiss this case for lack of subject-matter jurisdiction. And, if this Court finds thatit has jurisdiction, it should nevertheless dismiss Williams’ case on several grounds, including her failure to comply with the statutory pre-requisites to suit, quasi-estoppel, and res judicata. The FBISD Parties also request that this Court award their attorneys’ fees against Williams. FACTUAL AND PROCEDURAL BACKGROUND On March 18, 2020, at the onset of the COVID-19 pandemic, Govemor Abbott authorized political subdivisions to postpone their May 2, 2020, elections to the November 3, 2020, uniform election date. See The Governor of the State of Tex., Proclamation (Mar. 18, 2020), https://bit.ly/3oZwgst. The proclamation “allow[ed] political subdivisions that would otherwise hold elections on May 2, 2020, to move their general and special elections for 2020 only to the next uniform election date, occurring on November 3, 2020, without otherwise adjusting the term of office. . . .” Id. (emphasis added). On that same day, the Secretary of State issued Election Advisory No. 2020-12. Tex. Sec’y of State, Election Advisory No. 2020-12 (Mar. 18, 2020), https://bit.ly/3LoI5zE. Election Advisory 2020-12 interpreted the proclamation. Understandably, political subdivisions across the state asked how the Governor’s proclamation would affect the term lengths for newly-elected officials. The Secretary of State’s Office responded as follows: “Your newly elected office holders in November will have a shorter term. Their next election will return back to the May date.” See Email from Christina Worrell Adkins, Legal Director of the Elections Division for the Office of the Secretary of State, to Texas Political Subdivisions (Mar. 19, 2020)) at 1, attached as Exhibit A Williams applied for a trustee position on the District’s Board. The term was originally intended to run from May 2020 to May 2023. See Fort Bend Indep. Sch. Dist., A pplication of Denetta Williams for a Place on the May 2, 2020, General Election Ballot (Feb. 14, 2020), https://bit.ly/3HsZsOL. However, pursuant to the proclamation, the position’s term was effectively shortened. The Governor’s proclamation was not self-executing. See The Governor of the State of Tex., supra (stating that it would “allow political subdivisions” to move the election date) (emphasis added); see also Tex. Sec’y of State, supra (“In order to utilize this move, the governing body of the political subdivisions holding the elections must order the postponement of their election to the November 3, 2020, uniform election date.”) (emphasis in original). In accordance with the Governor’s March 18, 2020, proclamation, the District amended its election order and postponed the May 2, 2020, election to November 3, 2020. See May 2020 Election Amendment Order at 1, attached as Exhibit B. Williams was elected to the position. It is undisputed that Williams was sworn in as a trustee and served on the District’s Board from November 2020 to May 2023. Consistent with the law, the District called the subsequent election for Williams’ then-held position number in January 2023. In response, Williams challenged the order under which she was elected as void and, also, challenged the District’s order calling the May 2023 election. See Original Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction, generally, Williams v. Fort Bend I.S.D. Board of Trustees, et al, No. 23-DCV-303549 (434th Dist. Ct., Fort Bend County, Tex. April 21, 2023), attached as Exhibit C. After the District filed a Plea to the Jurisdiction, a hearing was held and the court granted the District’s Plea, dismissing Williams’ claims with prejudice. See Order Dismissing with Prejudice Plaintiffs claims, generally, Williams v. Fort Bend 1.S.D. Board of Trustees, et al, No. 23-DCV-303549 (434th Dist. Ct., Fort Bend County, Tex. May 1, 2023), attached as Exhibit D. The May 2023 election has since concluded. Ms. Jones was announced the winner on May 6, 2023. See Williams’ Third Amended Petition! (Petition or Pet.) at { 2. She replaced Williams as a Trustee. Williams now attempts to contest the May 2023 election results by filing her Third Amended Petition for the same reasons she attempted to stop the election from occurring in the first place. And, in doing this, she completely disregards the fact that her claims against the FBISD Parties have already been dismissed with prejudice. Williams does not have ! Williams filed her live petition on September 5, 2023, as her Fourth Amended Petition, however, it is truly her Third Amended Petition and is titled as such in the document itself. See generally, Pet. standing, she didn’t follow the required statutory prerequisites to contest an election, and her claims are barred by estoppel and res judicata. If, however, Williams could establish standing, she does not state any valid claim of relief. Accordingly, this Court should grant the FBISD Parties’ Plea, Motion for Summary Judgment, and Motion for Attorneys’ Fees. PLEA TO THE JURISDICTION A Standard of Review. A plea to the jurisdiction is the appropriate procedural vehicle for challenging a trial court’s exercise of subject-matter jurisdiction. See City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009). Depending upon the nature of the jurisdictional challenge, a court is required to employ one of two distinct analytical approaches when assessing the challenge. See id. When a jurisdictional challenge attacks the adequacy of the pleadings, a court must determine if the pleader has set forth allegations that affirmatively demonstrate the court’s jurisdiction to hear the case. See id. When a movant challenges the existence of jurisdictional facts, the court is also required to consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues involved. See id. When the court considers jurisdictional evidence, the analysis mirrors that of a traditional motion for summary judgment. See id. In other words, once a governmental entity comes forward with evidence negating an essential jurisdictional fact, the burden shifts to the plaintiff to produce sufficient evidence to create a genuine question of material jurisdictional fact. See id.; see also City of Houston v. Harris, 192 S.W.3d 167, 175 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding that it is unquestionably the plaintiff's burden to adduce evidence to demonstrate the existence of a fact issue if a governmental entity introduces evidence controverting jurisdictional facts). A governmental entity, including a Texas school district like the District, enjoys governmental immunity which renders it immune from suit and liability absent an applicable statutory waiver of its immunity. See Manbeck v. Austin Indep. Sch. Dist., 381 S.W.3d 528, 530-31, 533 (Tex. 2012); see also Harris Cnty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004) (“Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the State, including counties, cities, and school districts.”). A plaintiff must affirmatively demonstrate the court’s subject-matter jurisdiction by identifying a “clear and unambiguous” statutory waiver of immunity, and the Court is without power to hear the case unless the plaintiff meets its burden. Oncor Elec. Delivery Co. LLC v. Dallas Area Rapid Transit, 369 S.W.3d 845, 849 (Tex. 2012); see also DART v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). A dismissal with prejudice is appropriate when a trial court lacks subject-matter jurisdiction because of the governmental immunity bar. Sykes, 136 S.W.3d at 639. B. Because Williams lacks standing this C ourt lacks subject matter jurisdiction. The Court need not decide whether Williams has viable claims because she has not established standing. “Standing is a prerequisite to subject-matter jurisdiction, and subject- matter jurisdiction is essential to a court's power to decide a case.” M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001). As such, “a plea to the jurisdiction is a proper vehicle to challenge a plaintiff's standing to maintain suit.” Tex. Med. Res., LLP v. Molina Healthcare of Tex., Inc., 620 S.W.3d 458, 463 (Tex. App.—Dallas 2021), aff'd, 659 S.W.3d 424 (Tex. 2023) (citing Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015). Determining whether a plaintiff has standing “requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” Heckman v. Williamson Cnty., 369 S.W.3d 137, 156 (Tex. 2012) (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)). 1 Williams’ Petition is not a valid election contest, thus, she has not demonstrated that she has a private right of action. “An election contest is a special proceeding created by the Legislature to provide a remedy for elections tainted by fraud, illegality or other irregularity.” Blum v. Lanier, 997 S.W.2d 259, 262 (Tex. 1999). “In an election contest, a district court's authority to act is limited to the subjects or grounds expressly or impliedly authorized by the election code.” City of Granite Shoals v. Winder, 280 S.W.3d 550, 557 (Tex. App.—Austin 2009, pet. denied). And, importantly, “[a] lawsuit seeking a declaration that the State or its subdivisions do not have the authority to hold an election is ... not an election contest.” Walker Cnty. ESD No. 3 v. City of Huntsville, 658 S.W.3d 807, 813 (Tex. App—Waco 2022, pet. filed) (citing id. at 557-58). Here, that is precisely what Williams is doing: seeking to render the May 2023 election void on the grounds that the District’s Board of Trustees acted “in an egregious and malicious violation of Williams’ constitutional rights [by] plac[ing] position 5 on the ballot knowing the term of office for the seat was three years.” Pet. at § 18. Specifically, Williams asserts that “the [B]oard of [T]rustees did not have the legal authority to reduce [her] term in office.” Id. at § 34. This is not an election contest as a matter of law. See Walker Cnty. ESD No. 3, 658 S.W.3d at 813. As such, Williams has not demonstrated that she has a private right of action under the Election Code to bring her claims. See Patel v. Rios, No. 01-20-00856- CV, 2022 WL 3649348, at *7 (Tex. App. Aug. 25, 2022), review denied (Jan. 13, 2023) (holding that, “[iJn the absence of a private right of action in his favor, [the Plaintiff] lack[ed] standing to pursue his claim.”)’ 2 Wiliams does not have (and has not demonstrated) standing to sue for violations of the Joint Election Statute by demonstrating that she has a private right of action. As stated above, absent a private right of action under a statute, there is no standing. See Plea at Part B.1; see also Patel, 2022 WL 3649348, at *7. Here, Williams has not established that she has a private right of action to enforce the Joint Election Statute. See generally, Pet.; see also Tex. Educ. Code § 11.0581. Thus, Williams does not have standing to bring her Joint Election claim and it should be dismissed. 3 Williams lacks standing because her claims are not redressible. “The third element of standing requires that the plaintiff's alleged injury be ‘likely to be redressed by the requested relief.’” Id. (quoting Allen, 468 U.S. at 751). Here, Williams’ alleged injury, if any, would not be redressed by her requested relief. ‘ 1 This Court does not have the authority to render the May 2023 election void because the FBISD Parties shortened Williams’ election term. Williams’ alleged injury is her claim that she was unlawfully denied the opportunity to serve a full three-year term as a Trustee for the District. See generally, Pet. For this very reason, she asks this Court to declare the May 2023 election void. The District conducted its election pursuant to the Secretary of State’s guidelines. Exh. A at 1 (“Your newly elected office holders in November will have a shorter term. Their next election will retum back to the May date.”). Which was in accord with express language from the Governor of Texas. See The Governor of the State of Tex., supra. The proclamation specifically “allow[ed] political subdivisions that would otherwise hold elections on May 2, 2020, to move their general and special elections for 2020 only to the next uniform election date, occurring on November 3, 2020, without otherwise adjusting the term of office. . . .” Id. (emphasis added). The Governor’s proclamation is the only grant of authority — under the Disaster Act — to change election dates.” And, notably, when Harris County sued the Governor alleging that he lacked authority under the Texas Disaster Act to issue an executive order prohibiting local governments from requiring face coverings, the Supreme Court of Texas found the executive orders to be a valid exercise of Governor Abbott’s authority. Abbott v. Harris Cnty., 672 S.W.3d 1, 19 (Tex. 2023). Further, the court found that the County was not likely to succeed on the merits of its clam. Government. Id. at 21. A declaratory judgment by this Court rendering the May 2023 election void would not bind the appropriate election officials — meaning that “the effect of the court’s judgment ... would not provide relief.” Lewis v. Governor of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019) (emphasis omitted). This is so because the District’s Board acted with express authority from the Secretary of State and the Governor. So, taking Williams’ requested relief to its logical core, this Court would effectively be retroactively ruling that the Govemor and the Secretary of State both acted unlawfully in granting the District — and every other local government 2 See In re Hotze, 627 S.W.3d 642, 643 (Tex. 2020) (“Governor Abbott issued a proclamation on March 13, 2020, certifying under the Texas Disaster Act of 1975 (“the Act”) that the novel coronavirus COVID-19 poses an imminent threat of disaster in all Texas counties. On July 27, the Governor issued another proclamation, again citing the Act, suspending two provisions of the Texas Election Code as they relate to the general election on November 3.”) (first emphasis added). 9 within the state — the authority in 2020 to postpone their elections. In other words, this Court would be retroactively deeming an exercise of both the executive’s and the legislative’s powers unlawful. See Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 139 (Tex. 2010) (noting that one fundamental purpose of the presumption against retroactivity is to protect the “people’s reasonable, settled expectations.”). Such a ruling would be an improper collateral attack on the Executive branch’s lawful exercise of authority and would violate the separation of power and doctrine. See Tex. Const. art. II, § 1; see also Texas Dep't of Fam. & Protective Servs. v. Dickensheets, 274 S.W.3d 150, 156 (Tex. App. 2008) (quoting J ones v. State, 803 S.W.2d 712, 715-16 (Tex. Crim. App. 1991), forthe proposition that the Separation of Powers doctrine is “violated when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers.”). And it would upset every citizen’s reasonable, settled expectations within the state of Texas with respect to the electorate. See Robinson, 335 S.W.3d at 139. This Court should not do this. If Williams wanted to contest the 2020 election and argue that Govemor A bbott acted unlawfully, Williams should have done so prior to that election. She did not. Further, because Williams’ sought-after relief would not redress her alleged injury, and because it would operate to retroactively render exercises of power by the legislative and executive branches unlawful, she lacks standing. ii. Even if the Joint Election Statute was violated, Williams has not demonstrated that this Court has the authority to render the May 2023 election void by reason of that violation. Williams brings claims under the Joint Election Statute. Assuming these claims aren’t baseless (and they are), this Court does not have the authority to render the May 2023 election 10 void if the Joint Election Statute was violated by the District. See generally, Pet.; see also Patel, 2022 WL 3649348, at *7. In fact, “Texas law does not allow a trial court to enjoin an election ordered by a co-equal branch of government, even if that election is subjectto being later determined that it was conducted in violation of Texas law.” Rodriguez v. Beaumont Indep. Sch. Dist., 413 S.W.3d 524, 535 (Tex. App.—Beaumont 2013, no pet.) (emphasis added) (citing Blum, 997 S.W.2d at 263 & n. 6). Accordingly, Williams claims under the Joint Election Statute are not redressible. Cc To the extent Williams seeks reinstatement, her action is moot. “Generally, a case is determined to be moot ‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.” See Camarena v. Tex. Emp't Comm'n, 754 S.W.2d 149, 151 (Tex. 1988) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)). In the context of elections, when an individual’s term expires, any action for reinstatement becomes moot: When Martinez filed his declaratory judgment action seeking reinstatement, his term had not expired, and he presented a live controversy. However, as Martinez acknowledges in his motion for rehearing, when his term expires following the November 3, 2020 election, his action for reinstatement becomes moot. City of Leon Valley v. Martinez, No. 04-19-00879-CV , 2020 WL 6748723, at*1 (Tex. App— San Antonio Nov. 18, 2020, no pet.) (citations omitted). Williams’ term expired in May 2023. This means that, to the extent she seeks reinstatement to the District’s Board of Trustees, she has not presented to the Court a live controversy. Williams’ claim is moot. D The FBISD Parties did not act ultra vires, so governmental immunity is maintained. In her Petition, Williams refers to the May 2023 election as being ultra vires. Pet. at 11 99 2, 23, 27, 30, 32. (“It is ultra vires and exceeds the board’s authority under the Texas Education Code...”). However, Williams’ attempt to assert claims that the FBISD Parties who conducted the election acted ultra vires fail as a matter of law. Under the doctrine of sovereign immunity, the state cannot be sued without its consent. See City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). Sovereign immunity protects state agencies, while governmental immunity protects political subdivisions of the state, including school districts. See Witchita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). Without a valid waiver of immunity, courts lack subject-matter jurisdiction to hear claims against school districts. See id. Ina suit against a governmental entity or its officials, the plaintiff must affirmatively demonstrate the court’s subject matter jurisdiction by alleging a valid waiver of immunity. See DART, 104 S.W.3d at 542. The court cannot hear a case unless a plaintiff does so. See id. at 542, 544; Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999). If a governmental official allegedly acted ultra vires, that may be grounds for subject-matter jurisdiction. See Franka v. Velasquez, 332 S.W.3d 367, 382 (Tex. 2011) (“With that [ultra vires] exception, an employee sued in his official capacity has the same governmental immunity, derivatively, as his government employer.”). “To fall within this ultra vires exception, a suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.” City of El Paso, 284 S.W.3d at 372. An ultra vires claim based on actions taken without legal authority has two fundamental components: (1) authority giving the public official some, but not absolute, discretion to act, and (2) conduct outside of that authority. See 12 Hall v. McRaven, 508 S.W.3d 232, 239 (Tex. 2017). Williams’ claims falters on the second prong. On March 18, 2020, Governor A bbott granted school districts discretionary authority to postpone their May 2, 2020 elections until November 3, 2020. See The Governor of the State of Tex., supra; see also Tex. Sec’y of State, supra; Exh. A at 1. The District acted within the scope of that authority. See Exh. B at 1. Because the FBISD Parties never acted ultra vires, governmental immunity is retained and this Court lacks subject-matter jurisdiction to hear this case. See Hall, 508 S.W.3d at 239. MOTION FOR SUMMARY JUDGMENT A Standard of Review The standard of review in a summary judgment proceeding is well settled. When a defendant moves for summary judgment on an affirmative defense, they are entitled to summary judgment if they conclusively establish each of the essential elements of an affirmative defense as a matter of law. See Montgomery v. Kennedy, 669 S.W.2d 309, 310- 11 (Tex. 1984); see also Marshall v. Sackett, 907 S.W.2d 925, 930 (Tex. App.—Houston [1st Dist.] 1995, no writ). Evidence is conclusive only if reasonable persons could not differ in their conclusions. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). But, when a party opposing summary judgment judicially admits a fact in their pleadings, summary judgment may be based on that party’s judicial admissions. See Lyons v. Lindsey Morden Claims Mgmt., 985 S.W.2d 86, 92 (Tex. App.—El Paso 1998, no pet.). If the defendant produces sufficient evidence to establish the right to summary judgment, the plaintiff must present contradictory evidence that gives rise to a fact issue in order to avoid summary judgment. See Marshall, 907 S.W.2d at 930; see also Aspenwood Apartment Corp. v. Link, 13 01-05- 00555-CV, 2007 WL 2832985, at *6 (Tex. App.—Houston [1st Dist.] Sept. 27, 2007, pet. denied). B. Because Williams’ claims have already been dismissed with prejudice by a court of competent jurisdiction, they are barred by res judicata. Williams seemingly couches her claims within the context of an election contest in an attempt to take another bite out of the proverbial apple. This is not an election contest. The claim she is truly asserting — that the FBISD Parties acted ultra vires and unconstitutionally by calling and conducting the May 2023 election — has already been dismissed with prejudice by the 434th District Court of Fort Bend County. See Exhs. C, D. This Court should follow suit. The doctrine of “[r]es judicata, or claims preclusion, prevents the relitigation of aclaim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit.” Barr v. Resolution Tr. Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992) (citing Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984)). “The policies behind the doctrine reflect the need to bring all litigation to an end, prevent vexatious litigation, maintain stability of court decisions, promote judicial economy, and prevent double recovery.” Id. at 629 (citing Zollie Steakley & Weldon U. Howell, Jr., Ruminations on Res Judicata, 28 Sw.LJ. 355, 358-59 (1974)). In order to properly rely on res judicata, Jones must prove “(1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action grounded on the same claims as those raised or that could have been raised in the first action.” Samuel v. Fed. Home Loan Mortg. Corp., 434 S.W.3d 14 230, 233 (Tex. App—Houston [1st Dist.] 2014, no pet.). These elements are easily satisfied. 1 The prior judgment was final and on the merits. A dismissal with prejudice on a plea to the jurisdiction based on sovereign immunity or lack of standing supports a res judicata defense. See Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Services, Inc., 500 S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (citing Cf. Harris Cty., 136 S.W.3d at 640, for its holding that “dismissal with prejudice based on plea to jurisdiction supports res judicata defense because it fully and finally adjudicates whether claims asserted ... come within Texas Tort Claims Act's waiver of sovereign immunity); see also Wolter v. Delgatto, No. 14-05-00055-CV, 2006 WL 664214, at *3 (Tex.A pp.—Houston [14th Dist.] Mar. 16, 2006, no pet.) (finding that dismissal with prejudice for lack of standing was on merits and “the dismissed claims were finally determined”). The prior court granted the previous defendants’, the District’s former Board of Trustees, Plea to the Jurisdiction and dismissed Williams’ claims with prejudice. See Exh. D. Within their Plea, the Trustees argued many grounds, including sovereign immunity and lack of standing. See Response to Plaintiff's Original Petition and Application for Temporary Restraining Order and Plea to the Jurisdiction, generally, Williams v. Fort Bend I.S.D. Board of Trustees, et al, No. 23-DCV-303549 (434th Dist. Ct, Fort Bend County, Tex. May 1, 2023), attached as Exhibit E. Thus, this element is satisfied. 2 The second element of res judicata, identity of parties or those in privity with them, is satisfied. The FBISD Parties, with the exception of Jones, were all involved in the last suit and dismissed with prejudiced. Compare Pet, with, Exh. C. There is identity of the parties with 15 respect to them. Moreover, Jones is in privity with the former and current Board of Trustees. “Privity connotes those who are so connected with a party to the judgment in the law such that the party to the judgment represented the same legal right.” Samuel, 434 S.W.3d at 234 (citing Gaughan v. Spires Council of Co-Owners, 870 S.W.2d 552, 555 (Tex.A pp— Houston [1st Dist.] 1993, no writ)). A party is in privity if “its interests can be represented by a party to the action.” Id. at 235. Here, Jones is a current member of the District’s Board of Trustees. Accordingly, she represents the Board’s interest and is in privity. 3. This action is grounded on the same claims as the previous action Williams brought. Even a cursory review of Williams’ Petition in this case against the FBISD Parties, and the one she filed against the former Board of Trustees, reveals they are largely duplicative of one another. This is demonstrated below. 27. Pursuant to the UDJA, Plaintiff seeks a declaratory judgment of the May 6, 2023, school board election: a. Itis ultra vires and exceeds the board ‘s authority under the Texas Education Code Chapter 11 Section 11.059 TERMS (a). 16. Pursuant to the UDJA, Plaintiff seeks a declaratory judgment of the ORDER OF ELECTION: a. Is ultra vires and exceeds the Board’s authority under the Texas Education Code Chapter 11 Section 11.059 (a). Compare Pet. at 27, with, Exh. C at 116. 16 18.On January 9, 2023, the board of trustees, in an egregious and malicious violation of Williams’ constitutional rights, placed position 5 on the ballot knowing the term of office for the seat is three years (see exhibit D). I January 9, 2023, Kristen Malone, Board President, with malice, signed an order placing Trustee, position 5 on the ballot knowing my term of office did not expire until November 2023 (see exhibit E) Compare Pet. at 118, with, Exh. C at Part VII. 34. Article 2 Section 1 prohibits the three branches of government from exercising any ppwer properly attached to the other. Considering the authority to enact laws of the State is attached to the legislature, the board of trustees did not have the legal authority to reduce Williams’ term in office. 19. The board of trustees is a body corporate, created by the legislature and is constitutionally barred from enacting laws of the State. Therefore, the Board of Trustees decision to reduce the term of the Plaintiff's office below the minimum term of office enacted by law is ultra vires and a flagrant violation of the Plaintiffs Constitutional Rights. Compare Pet. at 34, with, Exh. C at 919. The heart of Williams’ argument is that the District’s Board of Trustees did not have the proper authority to hold the May 2023 election. This is exactly what she argued in her previous suit that was dismissed with prejudice by the 434th District Court of Fort Bend County. See Exhs. C, D, E. As such, this Court should grant the District’s Motion for Summary Judgment and dismiss Williams’ claims with prejudice. 17 Cc Williams is estopped from challenging the order under which she was elected. Parties may not “play fast and loose with the courts” for their own purposes. Cricket Commce'ns, Inc. v. Trillium Indus., Inc., 235 S.W .3d 298, 304 (Tex. App.—Dallas 2007, no pet.). Similarly, a party cannot assert, “to another’s disadvantage, a right inconsistent” with a previously taken position under the doctrine of quasi-estoppel. Steubner Realty 19, Ltd. v. Cravens Road 88, Ltd., 817 S.W.2d 160, 164 (Tex. App—dHouston [14th Dist.] 1991, no pet.). The doctrine requires only two elements: (1) “a previous action”; and (2) “a subsequent inconsistent action which is thereby sought to be estopped.” Id. at 607-08. The FBISD Parties easily satisfy both elements. Here, Williams was elected during the November 2020 election authorized by the Governor’s proclamation that she now challenges. She accepted the rights and privileges of office. But she now claims — over two years later — that the order was unlawful because it effectively shortened her term. Further, Williams participated in the May 2023 election. To now argue that it was void is wholly inconsistent with the campaign efforts she undertook and the fact that she served in office as a result of what she contends was the void 2020 election. Taking Williams’ arguments to their illogical conclusion, she was never a trustee at all. Had she won re-election in 2023, we most likely would not even be here. But she lost. In any event, quasi-estoppel prevents her from taking these inconsistent positions. D Williams’ claim that the FBISD Parties violated the Joint Election Statute is legally and factually wrong as a matter of law. Assuming Williams could establish standing, her claim under the Joint Election Statute fails on the merits. To demonstrate, Section 11.0581(a) of the Texas Education Code 18 provides that “[aJn election for trustees of an independent school district shall be held on the same date as ... the election for the members of the governing body of a municipality located in the school district ... [or]... the general election for state and county officers...” Tex. Educ. Code § 11.0581. Pursuant to this, the District contracted with Fort Bend County to have its election for Trustees on May 6, 2023 — the date the County conducted its general election. See Fort Bend ISD Election Order, attached as Exhibit F; see also Fort Bend County Election Order, attached as Exhibit G. Williams goes so far as to acknowledge this in her Petition, stating that “[o]n April 17, 2023, John Oldham (the election admnisitrator for Fort Bend County) and Fort Bend ISD executed ajoint election agreement and contract for election services.” Pet. at § 19. What is more, other political subdivisions, cities, municipal utility districts, and emergency services districts located in Fort Bend County had their election on May 6, 2023, as well. See Fort Bend County General & Special Election Results, https://results.enr.clarityelections.com/TX /Fort_Bend/117749/w eb.317647/#Hsummary?category=C_4 (last visited Aug. 31, 2023). In short, Williams’ claims that the FBISD Parties violated the Joint Election Statute are without merit and should not be entertained. E To the extent this is a valid election contest, Williams’ failure to comply with the Texas Election Code’s mandatory statutory prerequisites to filing suit is grounds to dismiss her Petition. Even assuming Williams’ Petition is an election contest, she failed to properly comply with the unambiguous prerequisites provided in the Texas Election Code. To demonstrate, the Texas Election Code provides, in pertinent part and in regard to contesting a primary election of a candidate to a political subdivision, that: 19 (c) A contestant must file the petition not later than the later of the 15th day after the date the election records are publicly available under Section 1.012 or the official result is determined in a contest of: (1) a primary or runoff primary election ... (d) A contestant must deliver, electronically or otherwise, a copy of the petition to the secretary of state by the same deadline prescribed for the filing of the petition. Tex. Elec. Code § 232.008 (emphasis added). This demonstrates that Williams had 15 days from the date the election records were publicly available or the results were determined to file the petition and deliver it to the secretary of state. The District’s election records were made publicly available on May 6, 2023.3 The official result of the primary election was also determined on May 6, 2023.‘ Thus, Williams had 15 days from May 6, 2023, to file her petition and deliver a copy to the secretary of state. It is now well past the deadline and, upon the FBISD Parties’ review, Williams did not deliver a copy to the secretary of state until September 2023. Williams’ failure to comply prohibited the accelerated procedures under Section 232.012 of the Texas Election Code from properly and timely occurring. See Tex. Elec. Code § 232.012. Accordingly, rendering the May 2023 election void would not give the District sufficient time to conduct a new election. See Maldonado v. Johnson, No. 04-18-00599-CV, 2018 WL 4517551, at *4 (Tex. App.—San Antonio Sept. 21, 2018, no pet.) (“Even if we were to reverse the trial court's 3 See Fort Bend County Election Records, (May 6, 2023), results.enr.clarityelections.com/TX /Fort Bend/117749/web.317647/#detail/0023. 4 See Board of Trustees Election Results, (May 6, 2023), https://www.fortbendisd.com/boardel ections; see also Pet. at § 2. 20 judgment and the trial court were to order a new primary nunoff election, there is insufficient time to conduct a new primary runoff election without interfering with the ordinary process of the general election.”); see also Pena v. Hernandez, No. 13-10-00342- CV, 2010 WL 3722245, at *1 (Tex. App.—Corpus Christi-Edinburg Sept. 20, 2010, no pet.) (“It is well-settled Texas law that, where a contest between candidates for nomination in a party primary election cannot be tried and a final decree cannot be entered in time for election officials to comply with the statutory deadlines for preparing for and conducting the general election, the election contest becomes moot and the issues no longer justiciable.”) (collecting cases). This Court should dismiss due to Williams’ failure to comply with these provisions.® MOTION FOR ATTORNEYS’ FEES PURSUANT TO THE TEXAS EDUCATION CODE Section 11.161 of the Texas Education Code allows for the award of attorneys’ fees and costs for civil suits brought under state law against an officer of an independent school district acting under color of office if “(1) the court finds that the suit is frivolous, unreasonable, and without foundation; and (2) the suit is dismissed or judgment is for the defendant.” Tex. Educ. Code § 11.161. Williams’ claims against the FBISD Parties, who are current officers for the District as their Board of Trustees, are frivolous, unreasonable, and without foundation, and the FBISD Parties seek the dismissal of the claims against them 5 The FBISD Parties note that failure to comply with the notice provisions under the Election Code is not jurisdictional. See City of Houston v. Bryant, 516 S.W.3d 47, 54 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). Nevertheless, “other consequences may flow from a party’s failure to comply with the requirement.” Id. (quoting City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009)). Th